England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(JUDGE PETER CLARK)

		Royal Courts of Justice Strand London, WC2
		3rd November 2005

1. SIR PETER GIBSON: The applicant, Neville Morrison, seeks permission to appeal from the order made on 22nd June 2005 by the EAT, His Honour Judge Peter Clark sitting alone, dismissing Mr Morrison's appeal from the order made by the EAT Registrar on 31st March 2005. By the Registrar's order, Mr Morrison's application for an extension of time in which to lodge an application in accordance with Rule 3(10) of the EAT Rules 1993 as amended ("the Rules") was refused.
2. The background facts are these. Mr Morrison was employed as a residential social worker by the respondent, Hillcrest Care Ltd ("Hillcrest"), from 9th November 2000 until dismissed on 17th March 2003. On 14th March 2003, when off duty, he drove his car to meet a work colleague outside Hillcrest's premises. Mr Morrison's cousin was also in the car. The cousin used cannabis in the car, as did the work colleague before returning to his duties under the influence of cannabis. It is not suggested that Mr Morrison himself used cannabis, but he was dismissed for gross misconduct in allowing a colleague on duty to smoke cannabis in his car outside Hillcrest children's home.
3. Mr Morrison appealed under Hillcrest's internal appeal procedure, but the appeal was dismissed. He then applied to the Employment Tribunal, complaining of unfair dismissal. By a decision sent to the parties on 21st January 2004 a tribunal sitting in London South upheld his complaint.
4. Hillcrest appealed. The EAT, Mitting J presiding, allowed the appeal on 13th September 2004 on the ground that the tribunal had, in making a comparison with Hillcrest's treatment of another employee, misdirected itself and failed to apply the guidance given in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352, approved by this court in Paul v East Surrey District Health Authority [1995] IRLR 305.
5. The EAT remitted the case to the same tribunal. That tribunal reconsidered its decision, and, by a decision sent to the parties on 5th November 2004, came to the conclusion that Mr Morrison had been fairly dismissed after all.
6. Mr Morrison, on 13th December 2004, lodged a notice of appeal on two grounds: first, a misdirection of law in the analysis of the action taken against the suggested comparator, and, secondly, on the ground of perversity.
7. On 14th December 2004 the Registrar wrote to Mr Morrison, informing him that the appeal was to be referred to a judge for determination whether the appeal had been duly instituted. Mr Morrison was referred to the EAT's Practice Direction.
8. On 6th January 2005 the Registrar wrote to Mr Morrison notifying him that the appeal had been referred to one of the EAT judges, His Honour Judge Richardson, in accordance with Rule 3(7) of the Rules. The judge expressed the opinion that the notice of appeal did not identify an arguable error of law and, accordingly, the EAT did not have jurisdiction to entertain the appeal. The Registrar's letter ended by drawing Mr Morrison's attention to Rules 3(8) and 3(10) of the Rules. Both those rules refer to a 28-day period from the sending of the notification under rule 7. Rule 3(8) allows another notice of appeal to be served within the 28-day period. By Rule 3(10), so far as material:

"Where notification has been given under paragraph (7) and within 28 days of the date the notification was sent, as appellant ... expresses dissatisfaction in writing with the reasons given by the judge ... for his opinion, he is entitled to have the matter heard before a judge who shall make a direction as to whether any further action should be taken on the notice of appeal ..."

9. On 14th February 2005 Mr Morrison faxed a letter to the Registrar. He expressed dissatisfaction with the reasons given by the judge and he himself relied on Rule 3(10) in asking for an oral hearing before a judge.
10. By letter dated 2nd March 2005 the Registrar replied. She drew attention to paragraph 9.6 of the EAT Practice Direction. This sets out the procedure provided in the rules and specifically mentions the 28-day limit. In the letter the Registrar pointed out that any challenge to the judge's decision should have been received by the EAT within 28 days, that is to say by 4 pm on 3rd February 2005. Mr Morrison was told he was eleven days out of time. He was invited to give reasons for the delay.
11. On 7th March 2005 Mr Morrison wrote to the EAT. In his letter he referred to being out of time, and continued:

"Firstly I would like to take the time to apologise for this which was beyond my control as at the time I was trying to apply for legal aid, in so doing I left all my documents with a solicitor for legal advice only to receive them back late. I did also inform him of the time which I had remaining to submit my letter asking for my case to be hearing before the registrar direct. I guess this fell on deaf ears because at a later date he decided he would not be able to represent me at the Appeal Tribunal which has resulted in me being out of time.

Therefore I do still wish to take this matter further, so I would like to make an application for an extension of time, if this will be granted."

12. By an order dated 31st March 2005 the Registrar refused Mr Morrison's application for an extension of time. In her written reasons she set out the effect of Rules 3(7) and 3(10), and said that by the latter an appellant might express dissatisfaction in writing within 28 days from the date on which the notification under Rule 3(7) was sent. She referred to rule 21 and paragraph 3.6 of the Practice Direction, and said that any application for an extension of time was to be treated as an interim application and dealt with by her. The Registrar continued:

"It is the appellant's duty to be aware of the importance of time limits and that these will be relaxed only in rare and exceptional cases where the EAT is satisfied that there is a full honest and acceptable explanation of the reasons for the delay (Aziz v Bethnal Green City Challenge Company Ltd [2000] IRLR 111).

It is not an acceptable reason for delay that the appellant claims that timeliness 'was beyond my control' as he had left documents with a solicitor in order to be advised about legal aid. The appellant was referred to paragraphs 3.7 and 3.8 of the Practice Direction, that a consideration of legal aid is not an acceptable reason to delay an appeal. Nor is the provision of legal advice as he had already filed one appeal unaided. Six weeks is a generous amount of time in which to appeal and the appellant was given a further four weeks by the rules but appears to have taken no steps to deal with this matter.

The leading case of United Arab Emirates and (1) Mr Abdelghafar (2) Dr AK Abbas (1995) ICR 65 states 'there is no excuse, even in the case of an unrepresented party, for the ignorance of time limits' and 'the interests of the parties and the public in certainty and finality of legal proceedings, make the court more strict about time limits on appeals'.

Therefore no exceptional reason has been shown why an application could not have been presented within the time limit laid down in paragraph 3(10) of the ... rules."

13. Mr Morrison then appealed to a judge of the EAT. At the hearing before Judge Peter Clark on 22nd June 2005 he was represented by counsel. The judge dismissed the appeal. The judge said this:

"10. I approach the case on its own merits. It seemed to me that the appellant was aware of the 28 day time limit. I take that from the following factors: first, he was referred to rule 3(8) and rule 3(10) in the earlier correspondence from the Registrar, setting out His Honour Judge Richardson's opinion, that is the letter of 6th January. Secondly, I am satisfied that a copy of the Practice Direction was sent when the appeal was first registered on 14 December 2004. But most significantly I interpret his application for an extension of time, contained in his letter dated 7th March, as an acceptance that he was aware of the 28 day time limit when he went to a solicitor for legal advice.

11. In these circumstances the only basis on which he seeks an extension of time is that his solicitor delayed in providing advice and retained the papers. I do not regard that as any proper excuse for missing the time limit. Even if one adopts the lower test advanced by Miss Morris [his counsel] I am not persuaded that the Registrar was wrong in refusing an extension of time. ... It seems to me that if the appellants wish to take advantage of the prospect of an oral hearing then it is incumbent on them to meet the deadline laid down in the Rules, as well as the Practice Direction, unless there are exceptional circumstances which merit an extension of time."

The judge said that there were no such exceptional circumstances.

14. Mr Morrison now applies to this court for permission to appeal. He prepared his appellant's notice by himself without legal assistance. He has appeared in person and has added to his four grounds by making submissions to me this morning. He has addressed me with courtesy. He has explained that he has not been able to understand what has happened. He claimed that he did not understand the references to the Abdelghafar case and that he has been acting under stress. His desire, he has made clear, is to clear his name.
15. The difficulty for him is that he cannot succeed on an application for permission to appeal to this court unless he can identify some ground of appeal which takes a point of law on which he has a real chance of succeeding.
16. The grounds of appeal are fourfold, and I shall consider them in turn. The first is that the order of the EAT was wrong because it was unfair and deprived him of a possibility of having his appeal heard. That the order of the EAT stopped the appeal being heard is of course correct, but that does not in itself demonstrate any unfairness. Mr Morrison, unhappily, failed to observe the time limits in the rules.
17. The Registrar has already explained - in my view accurately - the guidance given in the Abdelghafar case. Mr Morrison's own counsel, in her written submissions to the EAT, had quoted extensively from the judgment in that case; and there is no doubt that the guidance given in the Abdelghafar case as to the exercise of discretion to extend time when an applicant is out of time is authoratative because that guidance has been expressly approved by this court in the Aziz case. As Judge Peter Clark pointed out, Mr Morrison was aware of the time limits. He has not been able to provide a satisfactory excuse for the delay that has been put forward. The judge has explained - in my view correctly - that it is not sufficient to blame one's solicitor, nor is it sufficient that the applicant is a litigant in person. The Rules apply both to those who are represented, as well as to those who are not represented. I am afraid that on this first ground there is no real prospect of this court interfering with the judge's upholding of the Registrar's decision not to extend time.
18. The second ground is that the appeal has merit because at a first hearing of the case on the same facts, the tribunal found in his favour. That ground unfortunately ignores the fact that it was the same tribunal in its second decision which acknowledged its error in its first decision as had been pointed out by the EAT on the first appeal. The first decision was therefore wrong, and Mr Morrison can obtain no assistance from the fact that he succeeded on an erroneous first decision.
19. The third ground is that the tribunal judgment was reversed on appeal by the EAT. That simply accepts the point which I have made that the first decision was wrong in law. Again that is of no assistance to him.
20. The fourth ground is this:

"I should be accorded the same opportunity to put my case as the respondent. It is pertinent that the respondents have been represented while I am not. My right to appeal should not be denied on procedural grounds and this is wrong pursuant to the European Convention on Human Rights, Article 6."

21. There is no doubt that Mr Morrison, like any litigant, is entitled to a fair hearing, but the jurisprudence on the Convention makes plain that procedural time limits can be imposed without denying a litigant a fair trial. In this case the time limits are relatively generous. Mr Morrison did have the same opportunity to put his case as Hillcrest; and, whilst it is true that Hillcrest did have a legal representative whereas Mr Morrison now does not, he did of course have a legal representative in the form of counsel before Judge Peter Clark. I am afraid that there is nothing in this ground that offers any real prospect of success on an appeal.
22. Litigants in person must obey the rules as to time, and, in the absence of exceptional circumstances, time limits can properly be insisted on. No exceptional circumstances, I fear, have been shown. I am afraid, therefore, that none of the grounds of appeal has any real prospect of success, nor is there any other compelling reason why this appeal should be heard. It follows that I am obliged to dismiss this application.

ORDER: Application refused.